Provo City v. Gedo

556 P.3d 123

2024 UT App 116

PROVO CITY, Appellant,

v.Miguel David GEDO, Appellee.

No. 20230687-CA

Court of Appeals of Utah.

Filed August 15, 2024

Fourth District Court, Provo Department, The Honorable James R. Taylor, The Honorable Robert A. Lund, No. 191403472

J. Brian Jones, Stephen H. Schreiner, Matthew M. Griffiths, Nicholas Muhlestein, Eric R. Lemus, and Robert M. Trombly, Attorneys for Appellant

Neil D. Skousen, Attorney for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges John D. Luthy and AMY J. Oliver concurred.

Opinion

HARRIS, Judge:

¶1 After a two-day trial, a jury convicted Miguel David Gedo on two counts of sexual battery. But it was later discovered that the trial court lost—or never made—the audio recording of the trial. Based largely on the lack of a transcript, the trial court granted Gedo’s request for a new trial. Then, on the day the new trial was scheduled to begin, the trial court dismissed the case altogether, concluding that the statute of limitations had run on the charged crimes. Provo City (the City) now appeals, and challenges both the trial court’s order dismissing the case as well as the order granting Gedo a new trial. We agree with the City that the trial court erred by dismissing the case as untimely filed. But we discern no abuse of discretion in the trial court’s grant of Gedo’s request for a new trial, and we therefore remand the matter so that the new trial can be held.

BACKGROUND

¶2 In October 2017, the City charged Gedo with two misdemeanor counts of sexual battery related to events alleged to have occurred in June or July 2017. According to the City, Gedo inappropriately touched a woman who worked under his supervision. On November 21, 2019, the assigned judge dismissed that case, without prejudice to refiling, when the City’s witnesses failed to appear at a scheduled preliminary hearing.

¶3 Later that very same day—November 21, 2019—the City filed a new criminal case against Gedo, the one that gives rise to this appeal. In that case, the City again charged Gedo with two misdemeanor counts of sexual battery related to events alleged to have occurred in June or July 2017. Both sides agree that the second case concerns the same charged conduct as the first case, and that it simply represents the refiling of the charges that were dismissed without prejudice in the first case.

¶4 Gedo later filed a motion to dismiss the refiled case, pointing out that the applicable limitations period is two years following commission of the alleged crime, and asserting that the limitations period had therefore expired in June or July 2019, months before the case was refiled. In response, the City argued that the limitations period had not expired because the filing of the earlier case had tolled the running of the limitations period. The trial court—Judge Taylor, at the time—agreed with the City and denied Gedo’s motion, explaining that there is "clear precedent authority in Utah that when prosecution of an incident [is] commenced and then it is terminated before conviction, then the statute of limitations is tolled during that period."

¶5 The case was later reassigned to Judge Lund, and it eventually proceeded to a two-day jury trial. At the conclusion of the trial, the jury convicted Gedo on both counts. A few weeks later, Gedo filed a pro se motion seeking new counsel, asserting that his trial attorney (Trial Counsel) had performed deficiently. Among other things, Gedo claimed that Trial Counsel failed to meet with him "in person until one hour before trial" and that despite having provided his contact informa- tion, Gedo rarely heard from Trial Counsel. In particular, Gedo asserted that Trial Counsel had been unprepared for trial and had failed to lodge certain objections. With regard to these objections, Gedo’s allegations were quite specific: he asserted that Trial Counsel had failed to object to, among other things, the City’s introduction of certain evidence Gedo believed hadn’t been properly disclosed, certain statements the prosecutor made during closing arguments, and the seating of several jurors. After Gedo’s filing, Trial Counsel moved to withdraw, and the court later appointed new counsel (Post-Trial Counsel).

¶6 Soon after being appointed, Post-Trial Counsel requested a copy of the audio recording of the trial so that he could create a transcript and begin investigating Gedo’s allegations regarding Trial Counsel’s performance. Two weeks passed, and no audio recording arrived, so Post-Trial Counsel sought and obtained additional time within which to "procure the evidence and transcripts necessary" to support a motion for a new trial. In that filing, Post-Trial Counsel stated that Gedo had informed him that Trial Counsel had performed deficiently in several respects—including failing to investigate the case, failing to call witnesses, and failing to make timely objections—and he argued that, if those assertions were true, a new trial would be warranted, but he asked for leave to supplement this nascent request for a new trial with a more fulsome brief once he received the recording.

¶7 But the requested audio recording never arrived. According to an email from court staff, there existed "some recording … from day 2" of the trial, but court staff had "been unable to locate the recording." The record submitted to us on appeal does not contain any further explanation of the reasons why no recording of the trial exists. All parties agree, however, that there is no recording and that—as the City puts it—"the loss of the trial transcript was an error on the part of the [trial] court."

¶8 Sometime later, Gedo filed a motion for a new trial, invoking rule 24(a) of the Utah Rules of Criminal Procedure, which allows a trial court to "grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party." In the motion, Gedo pointed out that no transcript of the trial existed, and he asserted that "reconstruction of the record would be seemingly impossible." Gedo maintained that the interest of justice demanded a new trial here "because the lack of record makes it impossible for any [c]ourt to determine whether Gedo’s constitutional right to a fair trial" was violated. The City acknowledged the absence of a transcript, but it nevertheless opposed Gedo’s motion, asserting that Gedo had "not shown any nonspeculative prejudice resulting from gaps in the trial record."

¶9 After full briefing and oral argument, the trial court granted Gedo’s motion and ordered that a new trial be held. In making its oral ruling, the court noted that some aspects of Trial Counsel’s performance had "raised a red flag" in the court’s mind regarding Trial Counsel’s effectiveness, and the court offered its view that Trial Counsel had, at times, been "somewhat shooting from the hip." The court was specifically critical of Trial Counsel’s level of preparation, but the court nevertheless stated that "there was nothing in particular" about Trial Counsel’s actions during the trial that "seem[ed] particularly deficient." However, the court noted that it had invited Trial Counsel to respond in writing to Gedo’s pro se allegations of deficient performance and that Trial Counsel hadn’t filed anything, a fact the court interpreted as "corroborat[ion of] Mr. Gedo’s contentions." And finally, the court noted that because of the missing audio recording of the trial, there was "no way for Mr. Gedo or [Post-Trial Counsel] to recreate the record to analyze the effectiveness of [Trial Counsel’s] performance at trial." For all those reasons, taken together, the court ordered that a new trial be held, and it scheduled that trial to begin on April 25, 2023.¹

¶10 After business hours on April 24, the day before trial was to start, Gedo filed another motion to dismiss the case, asserting again—as he had at least once before, through previous counsel²—that the City had filed the case more than two years after the alleged conduct occurred and that the case was therefore time-barred. The next morning, before the City had a chance to file any written response to Gedo’s latest motion, the trial court—this time, Judge Lund— granted the motion to dismiss, explaining in an oral ruling that because the case was filed "two years and four months" after the charged conduct, the case was untimely filed. Although the record indicates that the court had "met with counsel in chambers," off the record, to discuss the motion, the court did not afford the parties an opportunity to argue the merits of the motion on the record. There is no indication in the record that the court ever analyzed—as Judge Taylor had— whether the running of the limitations period had been tolled by the filing of the earlier case. When given a post-ruling opportunity to "make a record," the City stated simply that it had "oppose[d]" the motion and that it was "only given [the] motion 12 hours before court and [was therefore] not given proper time to be able to respond." The court was unpersuaded by that objection, and it later ordered the entire case dismissed.

ISSUES AND STANDARDS OF REVIEW

[1] ¶11 The City now appeals, and challenges both the trial court’s order of dismissal as well as its order granting Gedo’s motion for a new trial. We review for correctness the court’s order dismissing the case on statute of limitations grounds. See State v. Lusk, 2001 UT 102, ¶ 11, 37 P.3d 1103 ("[W]hether the statute of limitations has run is a legal conclusion to be reviewed for correctness.").

[2, 3] ¶12 "Generally speaking, a trial court’s decision to grant or deny a motion for a new trial is reviewed for an abuse of discretion." Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 30, 502 P.3d 320 (quotation simplified), cert. denied, 509 P.3d 768 (Utah 2022). But in reality, "our standard of review in this context is often more nuanced than that," and depends on "the specific grounds upon...